POPLA stage is it good to go?

dharm11

Hi, received a PCN after vehicle was captured entering and exiting car park. Tariff signs were not noticed as lighting in car park was not switched on. POPLA code received on the 1st of this month.

- Signs were not noticed upon entry or while in the car park
- Time in car park 1 hour
- POFA included on back of PCN
- ANPR images almost pitch black only Number plate boxes visible and the odd head light/rear light.
- Car broken down witness statement included
- Lighting came from outside of the car park making some signs even more difficult to see.
- Hight of entrance sign more than 230cm from the bottom of the sign to the ground
- Planning permission granted Conditional approval on 12/2013
- Planning documents show a slightly different entrance sign

Hop that any of you wonderful members can cast a eye on my draft POPLA appeal. Any feedback would be much appreciated.

dharm11

Date of PCN: xxxxxxx
PCN Number: xxxxxxxx
POPLA Verification Code: xxxxxxxxxx
Vehicle Registration: xxxxxxxxxx

Dear PoPLA,

I write to you as the registered keeper of the vehicle listed above. I wish to appeal the parking charge notice (PCN) issued by the operator NCP.
I submit the reasons below to show that I am not liable for the parking charge:

1 - Grace period: BPA Code of Practice - non - compliance
2 - The entrance signs are inadequately positioned and lit and signs in this car park are not prominent, clear or legible from all parking spaces
3 - A compliant Notice to Keeper was never served - no Keeper Liability can apply.
4 - ParkingEye has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
5 – Vehicle images not provided in PCN The BPA Code of Practice - non-compliance
6 - The ANPR System is Neither Reliable nor Accurate
7 - No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
8 - No Planning Permission from Leicester City Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage
9 - Frustration of contract – Vehicle broken down ... done


1 - Grace period: BPA Code of Practice - non - compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end of the parking event (of a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that:
"If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes."
BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

The BPA Code of Practice clearly states that the Grace Period to both enter and leave the car park should be a minimum of 10 minutes at either end of the alleged parking event. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), the reasonable grace period of 10 minutes on the start and end of the parking event, means the total time for being within the associated area is 34 minutes.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association
(BPA): “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

It is therefore argued that the duration of the visit in question, which ParkingEye claim was 54 minutes is not unreasonable, when grace periods must be given:
a) The lack of sufficient signage throughout the car park in question (non-compliance with BPA Code of Practice 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract. Please see figure XXX for a layout of signage.
b) The failure to light signage adequately so as to make signs visible from all parking spaces (which they are not) and legible once located. As figures 3 and 10 shows, there is no lighting above either sign which would make the parking conditions unlegible in the dark.
c) The lengthiness of ParkingEye signage (in terms of word count) (see figure 2). The small writing within the signage is impossible to view when driving through the car park, and difficult even when close by to the signage.
d) The height of the signage is over 6ft above the ground level, and not in the eye line of the driver as they drive into the area, making it very difficult to spot and read the signage.

All factors discussed above serve merely to increase the time taken to:
· Locate a sign containing the terms and conditions.
· Read the full terms and conditions.
· Decipher the confusing in formation being presented.
· Return to car and safely leave the car park upon exit.


2 - The entrance signs are inadequately positioned and lit and signs in this car park are not prominent, clear or legible from all parking spaces

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

Inadequate signage
The signs in this car park are not prominent, clear or legible from all parking spaces or before entry.
On a recent visit after the aleged contract I found it difficult to read text in every panel even when stood next to the sign. I note that the bottom panel describes data protection use of information gathered.
I note that within the Protection of Freedoms Act (PoFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given ‘adequate notice’ of the charge. PoFA 2012 defines ‘adequate notice’ as follows:
“(3) For the purposes of sub-paragraph (2) ‘adequate notice’ means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.”

Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site - given that it is hidden from view ithout lighting behind the entrance to the car park - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist before entering the car park.
There was no contract nor agreement on the ‘parking charge’ at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar ‘ParkingEye Ltd v Beavis’ case.
In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that particular car park and those facts only.
Http/Court link
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were ‘large lettering’ signs at the entrance and all around the car park, according to the Judges.
The ‘Beavis case’ sign is shown in figure 1 as a comparison to the signs under dispute in this case, shown alongside in figure 2.
Figure 1: Beavis sign
This case, by comparison, does not demonstrate an example of the ‘large lettering’ and ‘prominent signage’ that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and ‘agreement on the charge’ existed.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of ‘white space’ as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

ParkingEyes’ car park sign on the XXX Road site is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read (see Figure 2).
Figure 2: XXX Road - main car park sign close-up
The image in Figure 2 shows a close up of the main car park sign next to the payment machine in the same lighting conditions as the date/time for which the PCN has been issued. (N.B. This image was taken whilst standing at ground level looking up. The camera was held above head height so as to capture as close an image as possible, therefore it cannot be assumed that this is the view a person would have when standing below the sign. It should be emphasised that, when viewed from ground level, the text is even more difficult to read than it is in Figure 2).
Figure 4 shows a wider angle view of the same main car park sign, giving some context to the size/location of the sign shown in Figure 2. Figure 3 shows clear evidence that
• The sign is positioned high on a pole, making it difficult to read.
• The terms are made even harder to read due to the tiny text that is illegible (without a torch and magnifying glass) from where a person would be standing,
• The sign is unlit and relies on street lighting but this is hindered by the shadows casted from a near by tree.
Figure 2 and Figure 3 clearly show that ParkingEyes’ signage does not comply with the BPA Code of Practice (18.3), specifically:
“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
The section terms & condition at the bottom of the sign (see Figure 2) that every driver needs to comply to to avoid being invoiced with a fine is in tiny text that is impossible to read without a step ladder, particularly in the dark when you would also need a torch. It cannot be ignored – and therefore urges the reader to fully read and comply. Why is something so important so small and illegible?
Areas of this site are unsigned and there are no full terms displayed clearly indicating non-compliance with the BPA Code of Practice (18.3) which states:

“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

RED TXT ** Recently (September 2017) a not dissimilar *Link*POPLA appeal *L*versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice. **RED txt

It cannot be reasonably assumed (particularly given this case took place after sunset in a car park without its own lighting or without any signage being adequately lit) that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one.

Figure 4: Approcah to the car park indicating lighting conditions and lack of signage
Figure 4 shows the main approach to the car park in an image taken in the same lighting conditions as per the occasion for which the PCN has been issued. The car park is located to the left just before the road bend starts to end. Between the two large trees is the entrance to the car park (see Figure 5 below). This image clearly shows no signage on approach to the car park itself, how dark/poorly lit the car park entrance is.

Figure 5: Car park entrance from angle at which a vehicle approaches
Figure 5 shows the car park entrance from the angle at which it would be approached in a vehicle from a 30mph road. It was taken in the same lighting conditions as per the occasion for which the PCN has been issued. The image clearly show the lack of lighting and also that the entrance sign is unidentifiable to the naked eye when stood still, let alone when driving a vehicle approaching from a 30mph road.
The BPA Code of Practice (Appendix sets the requirements for entrance signs. Following further research (on foot, during daylight), it is not disputed that Euro Car Parks entrance sign meets these requirements in terms of wording/layout – in fact it is almost a direct copy of the example the BPA provide. What is disputed are other requirements the BPA sets in Appendix B, specifically:

1. The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
2. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual.

In disputing points 1 and 2 above, the relevant entrance sign in this appeal case is not readable by drivers without their need to look away from the road ahead (it’s not even visible), nor is it readable and understandable at all times. It is not directly lit nor does it benefit from lighting used for the parking area. It may well be made of a retro-reflective material but this is irrelevant in this case as the positioning of the entrance sign is as such that vehicle headlights will never shine on it sufficiently so as to illuminate it.
To expand upon the latter point, further research confirmed there is only one sign at the entrance to the XXX Road car park. Figure 7 shows the location of the sign, indicated by the green dot.

Figure 6: Position of entrance sign and path of vehicles upon entry

The entrance sign is the sign that states Tariff payable at machine or by phone and refers to terms and conditions. As previously discussed, the issue with this entrance sign is not compliance in terms of wording/format, more positioning and illumination. Specifically, I will discuss three factors that are key in establishing non-compliance with the BPA CoP (Appendix ; the height of the sign; the distance of the sign from the approach road; the direction the sign faces in relation to approaching traffic.

Figure 7: Height of relevant entrance sign, distance from approach road and illustration of vehicle direction upon entry.
As explained in Figure 7 above, the measurement from the ground to the bottom of the relevant entrance sign is 230cm. The measurement from the ground to the top of this sign is 310cm. The blue ‘P’ (indicating parking) and the text “Tariff payable at machine or by phone” is included in the upper 2 thirds of this sign, 255cm-310cm from the ground.
The sign is approximately one car length distance from the point at which a vehicle would begin turning into the car park from the 30mph approach road (see Figure 7 above).
The sign is angled so as to look directly out from the car park, pointing at 70 degrees from approaching traffic, as shown in Figure 8 below.

Figure 8: Angle of entrance sign
Giving that the majority of traffic enters from a left turn would it not be sensible to angle the entrance signage towards oncoming traffic? Indeed this seems to be the method employed in various other car parks observed whilst researching for this case
It is important at this point to reiterate that vehicles approaching/entering the car park do so from a 30mph street, as indicated in Figures 6 and 8. When discussing entrance signs, the BPA CoP (Appendix suggests a typical approach speed of 15mph to enter a car park by immediately turning off a 30mph road.
If we look at Figure 6 above, the blue arrows (upper car park area) and purple arrows (lower car park area) demonstrate the path a vehicle takes upon entry to the car park depending on which part of the car park the driver opts to use. Figure 7 clearly illustrates that vehicle headlights would never be shining in the direction of the relevant entrance sign in order to illuminate it and therefore enable the driver to A) see it and stand a chance of reading it. Figure 7 provides a front view also showing the two paths (using the same blue and purple arrows to indicate the same two paths) a vehicle would take upon entry to the car park.
Taking figures 6 and 7 into account and based on the angle of the entrance sign in relation to the approach road as illustrated in figure 8, it is clear that the entrance sign to the XXX Road car park is wholly inadequate. In order for the vehicle lights to shine on the entrance sign the vehicle would have to make an unnatural turn of over 90 degrees, within less than 5 metres, at a speed of around 15mph (using BPA CoP suggested approach speeds). This is impossible. Even if this manoeuvre was somehow performed, by the time the vehicle has turned to face directly towards the sign, it would be way too close for its headlights to illuminate a sign positioned 230cm from the ground.
Performing some simple calculations seeks only to reinforce the point that the entrance signs are non-compliant and invisible to a driver approaching in the dark. Take the length of the vehicle identified on the NtK, a Skoda Octavia Estate (4685mm) and the BPA’s suggested approach speed of 15mph. With an entrance sign positioned approximately one car length from the approach road as is the case here, travelling at 15mph the vehicle would be past the entrance sign in less than ¾’s of a second.
Moving on from the non-compliant entrance signs, I wish to share one further image that clearly illustrates the inadequate signage at the West Dyke Road car park.
Figure 9: Lack of visible signage from where vehicle was situated
Figure 10: Sign unreadable due to lack of lighting from within the car park
Figure 9 and 10 was taken in the same lighting conditions as per the occasion for which the PCN has been issued. This provides clear evidence as to the lack of legible or even visible signage from where the vehicle was situated.
Looking at the shaddows casted onto the car park figures 9, 10 and 3 prove any form of lighting came from outside and the car parks' own lighting was not being utilised.
It is therefore suggested once again that Figures 5 and 9 serve to reinforce the earlier point made (in relation to Figures 2 and 3) regarding non-compliance with the BPA Code of Practice (18.3), specifically:
“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
It is vital to observe, since ‘adequate notice of the parking charge’ is mandatory under the PoFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed—i.e. with the sum of the parking charge itself in large lettering—at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
This case is more similar to the signage in POPLA decision 5960956830 on 2 nd June 2016, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
“the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. In addition the operators signs would not be clearly visible from a parking space. The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.”
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than 40pt font size going by this guide:
XXX
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
XXX

dharm11

“When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1–2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.”
“When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall.”
“...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the maximum viewing distance.”
So, a letter height of just half an inch, showing the terms and the ‘charge’ and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning’s Red Hand Rule, the charge (being ‘out of all proportion’ with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: ‘in red letters with a red hand pointing to it’—i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in ‘Beavis.’ A reasonable interpretation of the ‘red hand rule’ and the ‘signage visibility distance’ tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more ‘white space’ as background contrast. Indeed in the Consumer Rights Act 2015 there is a ‘Requirement for transparency’:
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact ‘Vine v London Borough of Waltham Forest EWCA Civ 106’ about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
This judgement is binding case law from the Court of Appeal and supports my argument, not the operator’s case:
XXX
This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to—and cannot have ‘breached’—an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as ‘private land’ and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver’s seat before parking.
So, for this appeal, I put ParkingEye to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver’s perspective. Equally, I require this operator to show how the entrance signs appear from a driver’s seat, not stock examples of ‘the sign’ in isolation/close-up, I have provided that example (figure 5) in order to provide comparisons with the ‘Beavis’ signage (figure 1). I submit that full terms simply cannot be read from a car before parking and mere ‘stock examples’ of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
In addition, the BPA Code of Practice (18.1) clearly states that:
“A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.”
Bearing this paragraph in mind, there was categorically no contract established between the driver and Euro Car Parks. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.
When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (too high, on the passenger side of the vehicle, not visible from drivers side), invisible after dark (not lit, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle entering the car park from a 30MPH road), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.


3. A compliant Notice to Keeper was never served - no Keeper Liability can apply.
ParkingEye has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.
The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) 'The second condition is that the creditor (or a person acting for or on behalf of the creditor) - (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.'
The NTK must have been delivered to the registered keepers’ address within the 'relevant period' which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As ParkingEye has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

4. ParkingEye has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with ParkingEye to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

5 – Vehicle images not provided in PCN The BPA Code of Practice - non-compliance
Code of Practice (20.5) states:
“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”
Neither the NTK nor the following appeal provided any images of the alleged event. I require ParkingEye to produce evidence of the original un-cropped images containing the required date and time stamp and to evidence where the photographs show the car to be parked when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

6 - The ANPR System is Neither Reliable nor Accurate

The ParkingEyes' Notice to Keeper (NtK) shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.
The Notice to Keeper states:
“On [DATE] the vehicle: XXXXXXX entered XXX Road – Leicester, at [ENTRY TIME] and departed at [EXIT TIME] on [DATE].”
These times do not equate to any single evidenced period of parking. By ParkingEyes' own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.
Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;
“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”
Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.
I require ParkingEye to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.
As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times (10 minutes and 48 seconds apart), it is vital that ParkingEye produces the evidence requested in the previous paragraph.

7 - No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.
The contract and any ‘site agreement’ or ‘User Manual’ setting out details—such as any ‘genuine customer’ or ‘genuine resident’ exemptions or any site occupier’s ‘right of veto’ charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site—is key evidence to define what this operator is authorised to do, and when/where.
It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put ParkingEye to strict proof of full compliance:
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement

8. No Planning Permission from Leicester City Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

ParkingEye do not have Planning Permission for the pole-mounted ANPR cameras, nor do they have Advertising Consent for signage exceeding 0.3 m2.
Anyone who displays an advertisement, or uses an advertisement site, or knowingly permits someone else to do so, without the consent required for it is acting illegally.
Displays which are unauthorised until consent is granted will amount to a criminal offence and can be subject to prosecution in the Courts where substantial fines can be imposed.
I believe ParkingEye are/have been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (polemounted ANPR cameras) for which no planning application had been made.
I request ParkingEye provide evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (12/01/2019)

9 - Frustration of contract – Vehicle broken down
I would finally like to add that there was a frustration of contract in that the vehicle had broken down and would not start, hence any alleged contract was frustrated. I have attached a separate witness statement which confirms this was the case. As mentioned above I put ParkingEye to strict proof that the vehicle was parked in an area controlled by themselves.

dharm11

Fruitcake

I don't think Grace Periods has any legs at all.

In your first post you say a NTK with POFA wording has been received yet have non POFA compliant NTK in your appeal.
You also mention Para 8 of POFA schedule 4 in your appeal, but Parking Lie used ANPR which is covered by Para 9.

Please explain your reasoning as a PoPLA assessor will throw out anything that's wrong and may not look in detail at other appeal points.

What was the reason given for issuing the NTK?

dharm11

Thanks for your reply. Hopefully the assessor will not disqualify the appeal if I keep the Grace Periods. So should I remove section 3 and possibly 4 as the NTK wording is included on the back of the PCN?



The reason for the NTK is because the motorist failed to make a appropriate tariff payment

Coupon-mad

So should I remove section 3 and possibly 4 as the NTK wording is included on the back of the PCN?

Yes. And remove #4, #5, #6 and #8 which are all padding, and pointless.

I think your strongest point is unlit signs but I would REMOVE the first signage pic after the Beavis case sign, as that one is readable. DON'T INCLUDE THAT ONE!

dharm11

Dear PoPLA,

I write to you as the registered keeper of the vehicle listed above. I wish to appeal the parking charge notice (PCN) issued by the operator ParkingEye.
I submit the reasons below to show that I am not liable for the parking charge:

1 - Grace period: BPA Code of Practice - non - compliance
2 - The entrance signs are inadequately positioned and lit and signs in this car park are not prominent, clear or legible from all parking spaces
3 - ParkingEye has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
4 – Photo evidence appears doctored
5 - The ANPR System is Neither Reliable nor Accurate
6 - No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
7 - No Planning Permission from Leicester City Council for Advertising Consent for signage
8 - Frustration of contract – Vehicle broken down


1 - Grace period: BPA Code of Practice - non - compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end of the parking event (of a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that:
"If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes."
BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

The BPA Code of Practice clearly states that the Grace Period to both enter and leave the car park should be a minimum of 10 minutes at either end of the alleged parking event. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), the reasonable grace period of 10 minutes on the start and end of the parking event, means the total time for being within the associated area is 34 minutes.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association
(BPA): “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

It is therefore argued that the duration of the visit in question, which ParkingEye claim was 54 minutes is not unreasonable, when grace periods must be given:
a) The lack of sufficient signage throughout the car park in question (non-compliance with BPA Code of Practice 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract. Please see figure XXX for a layout of signage.
b) The failure to light signage adequately so as to make signs visible from all parking spaces (which they are not) and legible once located. As figures 3 and 10 shows, there is no lighting above either sign which would make the parking conditions unlegible in the dark.
c) The lengthiness of ParkingEye signage (in terms of word count) (see figure 2). The small writing within the signage is impossible to view when driving through the car park, and difficult even when close by to the signage.
d) The height of the signage is over 6ft above the ground level, and not in the eye line of the driver as they drive into the area, making it very difficult to spot and read the signage.

All factors discussed above serve merely to increase the time taken to:
• Locate a sign containing the terms and conditions.
• Read the full terms and conditions.
• Decipher the confusing information being presented.
• Return to car and safely leave the car park upon exit.


2 - The entrance signs are inadequately positioned and lit and signs in this car park are not prominent, clear or legible from all parking spaces

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

Inadequate signage
The signs in this car park are not prominent, clear or legible from all parking spaces or before entry.
On a recent visit after the alleged contract I found it difficult to read text in every panel even when stood next to the sign. I note that the bottom panel describes data protection use of information gathered.
I note that within the Protection of Freedoms Act (PoFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given ‘adequate notice’ of the charge. PoFA 2012 defines ‘adequate notice’ as follows:
“(3) For the purposes of sub-paragraph (2) ‘adequate notice’ means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.”

Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site - given that it is hidden from view without lighting behind the entrance to the car park - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist before entering the car park.
There was no contract nor agreement on the ‘parking charge’ at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar ‘ParkingEye Ltd v Beavis’ case.
In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that particular car park and those facts only.
Http/Court link
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were ‘large lettering’ signs at the entrance and all around the car park, according to the Judges.
The ‘Beavis case’ sign is shown in figure 1 as a comparison to the signs under dispute in this case, shown alongside in figure 2.
Figure 1: Beavis sign
This case, by comparison, does not demonstrate an example of the ‘large lettering’ and ‘prominent signage’ that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and ‘agreement on the charge’ existed.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of ‘white space’ as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read before the action of parking and leaving the car.

ParkingEyes’ car park sign on the XXX Road site is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read (see Figure 2).
Figure 2: XXX Road - main car park sign close-up
The image in Figure 2 shows a close up of the main car park sign next to the payment machine in the same lighting conditions as the date/time for which the PCN has been issued. (N.B. This image was taken whilst standing at ground level looking up. The camera was held above head height so as to capture as close an image as possible, therefore it cannot be assumed that this is the view a person would have when standing below the sign. It should be emphasised that, when viewed from ground level, the text is even more difficult to read than it is in Figure 2).
Figure 3 shows a wider angle view of the same main car park sign, giving some context to the size/location of the sign shown in Figure 2. Figure 3 shows clear evidence that
• The sign is positioned high on a pole, making it difficult to read.
• The terms are made even harder to read due to the tiny text that is illegible (without a torch and magnifying glass) from where a person would be standing,
• The sign is unlit and relies on street lighting but this is hindered by the shadows casted from a nearby tree.
Figure 2 and Figure 3 clearly show that ParkingEyes’ signage does not comply with the BPA Code of Practice (18.3), specifically:
“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
The section terms & condition at the bottom of the sign (see Figure 2) that every driver needs to comply to to avoid being invoiced with a fine is in tiny text that is impossible to read without a step ladder, particularly in the dark when you would also need a torch. It cannot be ignored – and therefore urges the reader to fully read and comply. Why is something so important so small and illegible?
Areas of this site are unsigned and there are no full terms displayed clearly indicating non-compliance with the BPA Code of Practice (18.3) which states:

“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

It cannot be reasonably assumed (particularly given this case took place after sunset in a car park without its own lighting or without any signage being adequately lit) that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one.

Figure 4: Approach to the car park indicating lighting conditions and lack of signage
Figure 4 shows the main approach to the car park in an image taken in the same lighting conditions as per the occasion for which the PCN has been issued. The car park is located to the left just before the road bend starts to end. Between the two large trees is the entrance to the car park (see Figure 5 below). This image clearly shows no signage on approach to the car park itself, how dark/poorly lit the car park entrance is.

Figure 5: Car park entrance from angle at which a vehicle approaches
Figure 5 shows the car park entrance from the angle at which it would be approached in a vehicle from a 30mph road. It was taken in the same lighting conditions as per the occasion for which the PCN has been issued. The image clearly show the lack of lighting and also that the entrance sign is unidentifiable to the naked eye when stood still, let alone when driving a vehicle approaching from a 30mph road.
The BPA Code of Practice (Appendix sets the requirements for entrance signs. Following further research (on foot, during daylight), it is not disputed that ParkingEye entrance sign meets these requirements in terms of wording/layout – in fact it is almost a direct copy of the example the BPA provide. What is disputed are other requirements the BPA sets in Appendix B, specifically:

1. The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
2. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual.

In disputing points 1 and 2 above, the relevant entrance sign in this appeal case is not readable by drivers without their need to look away from the road ahead (it’s not even visible), nor is it readable and understandable at all times. It is not directly lit nor does it benefit from lighting used for the parking area. It may well be made of a retro-reflective material but this is irrelevant in this case as the positioning of the entrance sign is as such that vehicle headlights will never shine on it sufficiently so as to illuminate it.
To expand upon the latter point, further research confirmed there is only one sign at the entrance to the XXX Road car park. Figure 6 shows the location of the sign, indicated by the green dot.

Figure 6: Position of entrance sign and path of vehicles upon entry

The entrance sign is the sign that states Tariff payable at machine or by phone and refers to terms and conditions. As previously discussed, the issue with this entrance sign is not compliance in terms of wording/format, more positioning and illumination. Specifically, I will discuss three factors that are key in establishing non-compliance with the BPA CoP (Appendix ; the height of the sign; the distance of the sign from the approach road; the direction the sign faces in relation to approaching traffic.

Figure 7: Height of relevant entrance sign, distance from approach road and illustration of vehicle direction upon entry.
As explained in Figure 7 above, the measurement from the ground to the bottom of the relevant entrance sign is 230cm. The measurement from the ground to the top of this sign is 310cm. The blue ‘P’ (indicating parking) and the text “Tariff payable at machine or by phone” is included in the upper 2 thirds of this sign, 255cm-310cm from the ground.
The sign is approximately one car length distance from the point at which a vehicle would begin turning into the car park from the 30mph approach road (see Figure 7 above).
The sign is angled so as to look directly out from the car park, pointing at 70 degrees from approaching traffic, as shown in Figure 8 below.

Figure 8: Angle of entrance sign
Giving that the majority of traffic enters from a left turn would it not be sensible to angle the entrance signage towards oncoming traffic? Indeed this seems to be the method employed in various other car parks observed whilst researching for this case
It is important at this point to reiterate that vehicles approaching/entering the car park do so from a 30mph street, as indicated in Figures 6 and 8. When discussing entrance signs, the BPA CoP (Appendix suggests a typical approach speed of 15mph to enter a car park by immediately turning off a 30mph road.
If we look at Figure 6 above, the blue arrows (upper car park area) and purple arrows (lower car park area) demonstrate the path a vehicle takes upon entry to the car park depending on which part of the car park the driver opts to use. Figure 7 clearly illustrates that vehicle headlights would never be shining in the direction of the relevant entrance sign in order to illuminate it and therefore enable the driver to A) see it and stand a chance of reading it. Figure 7 provides a front view also showing the two paths (using the same blue and purple arrows to indicate the same two paths) a vehicle would take upon entry to the car park.
Taking figures 6 and 7 into account and based on the angle of the entrance sign in relation to the approach road as illustrated in figure 8, it is clear that the entrance sign to the XXX Road car park is wholly inadequate. In order for the vehicle lights to shine on the entrance sign the vehicle would have to make an unnatural turn of over 90 degrees, within less than 5 metres, at a speed of around 15mph (using BPA CoP suggested approach speeds). This is impossible. Even if this manoeuvre was somehow performed, by the time the vehicle has turned to face directly towards the sign, it would be way too close for its headlights to illuminate a sign positioned 230cm from the ground.
Performing some simple calculations seeks only to reinforce the point that the entrance signs are non-compliant and invisible to a driver approaching in the dark. Take the length of the vehicle identified on the NtK, a Skoda Octavia Estate (4685mm) and the BPA’s suggested approach speed of 15mph. With an entrance sign positioned approximately one car length from the approach road as is the case here, travelling at 15mph the vehicle would be past the entrance sign in less than ¾’s of a second.

dharm11

Moving on from the non-compliant entrance signs, I wish to share one further image that clearly illustrates the inadequate signage at the XXX Road car park.
Figure 9: Lack of visible signage from where vehicle was situated
Figure 10: Sign unreadable due to lack of lighting from within the car park
Figure 9 and 10 was taken in the same lighting conditions as per the occasion for which the PCN has been issued. This provides clear evidence as to the lack of legible or even visible signage from where the vehicle was situated.
Looking at the shadows casted onto the car park figures 9, 10 and 3 prove any form of lighting came from outside and the car parks' own lighting was not being utilised.
It is therefore suggested once again that Figures 5 and 9 serve to reinforce the earlier point made (in relation to Figures 2 and 3) regarding non-compliance with the BPA Code of Practice (18.3), specifically:
“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”
It is vital to observe, since ‘adequate notice of the parking charge’ is mandatory under the PoFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed—i.e. with the sum of the parking charge itself in large lettering—at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
This case is more similar to the signage in POPLA decision 5960956830 on 2 nd June 2016, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
“the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. In addition the operators signs would not be clearly visible from a parking space. The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.”
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than 40pt font size going by this guide:
XXX
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
XXX
“When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1–2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.”
“When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall.”
“...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the maximum viewing distance.”
So, a letter height of just half an inch, showing the terms and the ‘charge’ and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning’s Red Hand Rule, the charge (being ‘out of all proportion’ with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: ‘in red letters with a red hand pointing to it’—i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in ‘Beavis.’ A reasonable interpretation of the ‘red hand rule’ and the ‘signage visibility distance’ tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more ‘white space’ as background contrast. Indeed in the Consumer Rights Act 2015 there is a ‘Requirement for transparency’:
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact ‘Vine v London Borough of Waltham Forest EWCA Civ 106’ about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
This judgement is binding case law from the Court of Appeal and supports my argument, not the operator’s case:
XXX
This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to—and cannot have ‘breached’—an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as ‘private land’ and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver’s seat before parking.
So, for this appeal, I put ParkingEye to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver’s perspective. Equally, I require this operator to show how the entrance signs appear from a driver’s seat, not stock examples of ‘the sign’ in isolation/close-up, I have provided that example (figure 5) in order to provide comparisons with the ‘Beavis’ signage (figure 1). I submit that full terms simply cannot be read from a car before parking and mere ‘stock examples’ of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
In addition, the BPA Code of Practice (18.1) clearly states that:
“A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.”
Bearing this paragraph in mind, there was categorically no contract established between the driver and ParkingEye. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.
When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (too high, on the passenger side of the vehicle, not visible from drivers side), invisible after dark (not lit, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle entering the car park from a 30MPH road), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.



3. ParkingEye has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with ParkingEye to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

4 – Photo evidence appears doctored
I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time and date stamps. By close examination of the photographs, the details (time and date) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.
I would challenge Parking Eye to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).

5 - The ANPR System is Neither Reliable nor Accurate

The ParkingEyes' Notice to Keeper (NtK) shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.
The Notice to Keeper states:
“On [DATE] the vehicle: XXXXXXX entered XXX Road – Leicester, at [ENTRY TIME] and departed at [EXIT TIME] on [DATE].”
These times do not equate to any single evidenced period of parking. By ParkingEyes' own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.
Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;
“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”
Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.
I require ParkingEye to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.
As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times (10 minutes and 48 seconds apart), it is vital that ParkingEye produces the evidence requested in the previous paragraph.

6 - No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.
The contract and any ‘site agreement’ or ‘User Manual’ setting out details—such as any ‘genuine customer’ or ‘genuine resident’ exemptions or any site occupier’s ‘right of veto’ charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site—is key evidence to define what this operator is authorised to do, and when/where.
It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put ParkingEye to strict proof of full compliance:
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement

7. No Planning Permission from Leicester City Council for Advertising Consent for signage

ParkingEye do not have Planning Permission for Advertising Consent for signage exceeding 0.3 m2.
Anyone who displays an advertisement, or uses an advertisement site, or knowingly permits someone else to do so, without the consent required for it is acting illegally.
Displays which are unauthorised until consent is granted will amount to a criminal offence and can be subject to prosecution in the Courts where substantial fines can be imposed.
I believe ParkingEye are/have been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment for which no planning application is valid.
I request ParkingEye provide evidence that the correct Planning Applications were submitted (and approved) in relation to Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (12/01/2019)

8 - Frustration of contract – Vehicle broken down
I would finally like to add that there was a frustration of contract in that the vehicle had broken down and would not start, hence any alleged contract was frustrated. I have attached a separate witness statement which confirms this was the case. As mentioned above I put ParkingEye to strict proof that the vehicle was parked in an area controlled by themselves.

dharm11

Updated the draft appeal, I hope that someone can take a look before I submit it. Thanks

Coupon-mad

I already did!